An Actconcerning the preservation of biological
evidence and supplementing chapter 84A of Title 2A of the New Jersey Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. The Legislature finds
and declares that:

a. The value of properly
preserved biological evidence has been enhanced by the discovery of modern DNA
testing methods, which, coupled with a comprehensive system of DNA databases
that store crime scene and offender profiles, allow law enforcement to improve
its crime-solving potential;

c. Law enforcement
agencies indicate that “cold” case investigations are hindered by an inability
to access biological evidence that was collected during criminal
investigations;

d. Innocent people
mistakenly convicted of serious crimes for which biological evidence is
probative cannot prove their innocence if the evidence is not accessible for
testing under appropriate circumstances;

e. It is established that
the failure to update policies regarding the preservation of evidence squanders
valuable law enforcement resources, manpower hours, and storage space; and

f. Simple but crucial
enhancements to protocols for properly preserving biological evidence can solve
old crimes, enhance public safety, and settle claims of innocence.

2. For the purposes of this
act:

“Biological evidence” means
any item that contains blood, semen, hair, saliva, skin tissue, fingernail
scrapings, bone, bodily fluids or other identifiable biological material that
was collected as part of the criminal investigation or may reasonably be used
to incriminate or exculpate any person for the offense, whether this material
is catalogued separately, such as on a slide or swab or in a test tube, or is
present on other evidence, including, but not limited to, clothing, ligatures,
bedding or other household material, drinking cups, and cigarettes; the term
also shall include the contents of a sexual assault examination kit.

"Director” means the
Director of the Division of Criminal Justice in the Department of Law and
Public Safety.

“DNA” means deoxyribonucleic
acid.

“Law enforcement or prosecuting
agency” or “agency” means any governmental, public or private person or entity
within this State charged with the collection, storage, or retrieval of
biological evidence, including, but not limited to law enforcement agencies,
prosecutors’ offices, courts, public hospitals, and crime laboratories.

“Profile” means a unique
identifier of a person which is derived from that person’s DNA.

3. a. Every law
enforcement or prosecuting agency shall preserve any biological evidence
secured in relation to an investigation or prosecution of a crime while:

(1) The crime remains
unsolved; or

(2) The person convicted of
that crime remains in custody.

b. The provisions of this
section shall apply to biological evidence that:

(1) Was in the possession of
the agency during the investigation and prosecution of the case; and

(2) At the time of
conviction was likely to contain biological material.

c. The agency shall not
destroy biological evidence if an additional co-defendant, convicted of the
same crime, remains in custody and shall preserve this evidence while all
co-defendants remain in custody.

d. The agency shall retain
evidence in the amount and in a manner sufficient to develop a DNA profile from
the biological material contained in or included on the evidence.

e. Upon written request of
a defendant, the agency shall prepare an inventory of biological evidence that
has been preserved in connection with the defendant’s criminal case.

f. The agency may destroy
evidence that includes biological material before the expiration of the time
period specified in subsection a. of this section if:

(1) No other provision of
federal or State law requires the agency to preserve the evidence;

(2) The agency sends
certified delivery of notice of intent to destroy the evidence to:

(a) all persons who remain
in custody as a result of the criminal conviction, delinquency adjudication, or
commitment related to the evidence in question;

(b) the attorney of record
for each person in custody;

(c) the public defender;

(d) the county prosecutor
where the person was convicted; and

(e) the Attorney General;
and

(3) A person notified
pursuant to paragraph (2) of subsection f. of this section, within 180 days
after the date of receipt of the notice, does not:

(a) file a motion for
performance of forensic DNA testing under section 1 of P.L.2001 c.377
(C.2A:84A-32a); or

(b) submit a written request
for retention of evidence to the agency which provided notice of its intent to
destroy evidence under paragraph (2) of subsection f. of this section.

g. If the agency receives
a written request for retention of biological evidence after providing notice
under paragraph (2) of subsection f. of this section of its intent to destroy
that evidence, the agency shall retain the evidence while the person remains in
custody.

h. The agency shall not be
required to preserve physical evidence that is of such a size, bulk, or
physical character as to render retention impracticable. When such retention
is impracticable, the agency shall remove and preserve portions of the material
evidence likely to contain biological evidence related to the offense, in a
quantity sufficient to permit future DNA testing before returning or disposing
of the physical evidence.

i. If the agency is unable
to locate biological evidence that it is required to preserve under this act,
the chief evidence custodian assigned to the entity charged with the
preservation of the evidence shall provide an affidavit stipulating under
penalty or perjury that describes the efforts taken to locate that evidence and
that the evidence could not be located.

(2) Recommend practices,
protocols, models, and resources for cataloguing and accessing preserved
biological evidence currently in the possession of the State; and

(3) Administer and conduct
training programs for law enforcement officers and other employees charged with
preserving and cataloguing biological evidence regarding the methods and
procedures outlined in this act.

5. Any person who by virtue
of employment, or official position, has possession of, or access to,
biological evidence and destroys that evidence in violation of the provisions
of this act is guilty of a disorderly person's offense.

6. The Attorney General
shall promulgate guidelines and procedures governing the preservation of
biological evidence as required by this act.

7. This act shall take
effect on the first day of the seventh month after enactment and shall apply to
biological evidence in the custody of any law enforcement or prosecuting agency
on the effective date of this act.

STATEMENT

This bill would require every
law enforcement or prosecuting agency to preserve any biological evidence
secured in relation to an investigation or prosecution of a crime while that
crime remains unsolved or while the person convicted of that crime remains in
custody. The bill also requires the preservation of biological evidence as
long as additional co-defendants convicted of the same crime remain in
custody. A person is considered in custody if he or she is incarcerated,
civilly committed, on parole or probation, or subject to sex offender
registration.

The bill’s provisions apply to
biological evidence that was in the possession of the law enforcement or
prosecuting agency during the investigation and prosecution of the case and, at
the time of conviction, was likely to contain biological material. The bill
defines “biological evidence” as any item that contains blood, semen, hair,
saliva, skin tissue, fingernail scrapings, bone, bodily fluids or other
identifiable biological material that was collected as part of the criminal
investigation or may reasonably be used to incriminate or exculpate any person
for the offense, whether this material is catalogued separately, such as on a
slide or swab or in a test tube, or is present on other evidence, including,
but not limited to, clothing, ligatures, bedding or other household material,
drinking cups, and cigarettes. The contents of a sexual assault examination
kit also constitutes biological evidence.

Law enforcement or prosecuting
agencies are required to retain sufficient evidence to develop a DNA profile
from the biological material contained in the evidence. But they are not
required to preserve physical evidence that is of such a size, bulk, or
physical character as to render retention impracticable. Under these
circumstances, the agency must remove and preserve portions of the material
evidence likely to contain biological evidence related to the offense, in a
quantity sufficient to permit future DNA testing before returning or disposing
of the physical evidence.

Defendants may submit written
requests for an inventory of biological evidence that has been preserved in
connection with their cases, as well as a request in writing for a copy of that
inventory.

If the agency is unable to
locate biological evidence that was to be preserved, the chief evidence
custodian must provide an affidavit stipulating under penalty or perjury the
efforts taken to locate that evidence and that the evidence could not be
located.

Biological evidence may be
destroyed before the crime is solved or the person is released from custody
under certain limited conditions if proper notice is given to the appropriate
parties.

Under the bill, the Director
of the Division of Criminal Justice is required to develop standards for collecting,
retaining and cataloguing biological evidence; recommend practices, protocols,
models, and resources for cataloguing and accessing this evidence; and conduct
training programs for law enforcement officers and other employees charged with
preserving and cataloguing the evidence.

According to the sponsor, it
is crucial that biological evidence be appropriately preserved so that it can
be used to solve old crimes, enhance public safety, and settle claims of
innocence.